SHAHID ADNAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1837/2020

[2025] HKCFI 5374

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1837 of 2020

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and the Applicant being absent in open court

1.   Form 86 be amended, naming only the Torture Claims Appeal Board / Non-refoulement Claims Petition Officeand the Director of Immigration as the Putative Respondent and the Putative Interested Party respectively.

2.   The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 15 September 2020, the Applicant seeks leave to apply for judicial review of a decision of the Director of Immigration (“the Director) rejecting his non-refoulement claim, dated 14 May 2020 (“the Leave Application”).  The Applicant repeats this position in his supporting affirmation.

Discussion 

2.  For the reasons set out below, the Applicant’s intended judicial review is not reasonably arguable with any realistic prospects of success (see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676).

3.  It is apparent that the Applicant has misstated the date of the Director’s decision, which was in fact issued on 17 May 2018 (“the Director’s Decision”).  In that Decision, the Director rejected his non-refoulement claim on all applicable grounds under the Unified Screening Mechanism (USM).

4.  Should the Applicant seek to challenge that Decision, such an attempt would be misconceived in light of both the existence and implications of the two-tier system, and should be rejected (see Moshsin Ali [2018] HKCA 549; Yeni Setyawati v Torture Claims Appeal Board [2019] HKCA 1310).

5.  The appeal against the Director’s Decision was heard by the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) on 19 December 2019.

6.  The Board subsequently confirmed the Director’s Decision on 29 May 2020 (“the Board’s Decision”).  The Applicant’s personal background, together with the incidents alleged in support of his claim that he would be harmed or killed by the brothers of his girlfriend, Iram, owing to their opposition to the relationship, were set out in detail in the Board’s Decision.  The Board also recorded the relevant immigration and procedural history of this case as part of its determination. It is unnecessary to repeat those matters here, and for completeness reference can be made to the Board’s Decision, the hyperlink to which is included below[1]. Unless otherwise specified, the Board’s abbreviations and descriptions are adopted herein. 

7.  In view of the foregoing, should the Applicant actually intend to challenge the Board’s Decision in Form 86,he has wholly failed to identify or explain any basis upon which the Board could be said to have committed an error of law, acted irrationally, or engaged in a procedurally unfair manner.  On the contrary,the Board’s determinations were made within the scope of its lawful powers, after a careful and reasoned assessment of the relevant evidence by reference to the applicable legal framework:

(1)  The Board accepted that the Applicant met Iram at school and that the two fell in love.  It further accepted that Iram’s brothers objected to their relationship and wanted the Applicant to leave Iram alone. The Board also accepted that the Applicant was assaulted in the course of the attack incident.  However, having considered the Applicant’s evidence as a whole, the Board found that he sustained only minor injuries in that incident.

(2)  Based on the above findings, the Board conclude that the Applicant’s injuries did not attain the minimum level of severity and that he was not subjected to torture or CIDTP.  He had suffered no ill-treatment, whether physical or mental.  The Board did not accept that he would face a genuine and substantial risk of being subjected to ill-treatment under BOR 3. Nor was the Applicant’s claim under BOR 2 established.  He himself admitted that he was not a criminal and would not face any serious punishment upon return.  On the facts, the Board further did not accept that the Applicant could bring himself within any of the grounds prescribed for recognition as a refugee.  Nor had the Applicant shown that he had a well-founded fear of being persecuted for a Convention reason.  

8.  In view of the foregoing, and having reminded myself of the high standard of scrutiny required by law (see Nupur Mst v Director of Immigration [2018] HKCA 524at §14), I am not satisfied that any valid public law grounds have been established.  In these circumstances, the Court should decline to interfere with the decision of the Board, being the primary decision-maker.  Judicial review does not operate to afford the Applicant an additional avenue of appeal (see Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh[2018] HKCA 246; Re Masoom Parvez [2018] HKCA 163; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst (supra) at §14).

Conclusion

9.  Accordingly, the Leave Application is dismissed.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

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